R v Towgood - [2007] NZCA 359

ORDER PROHIBITING PUBLICATION OF JUDGMENT AND THE REASONS THEREFOR IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF RE-TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA480/06 [2007] NZCA 359

THE QUEEN

v

DUANE BRIAN TOWGOOD

Hearing: 19 June 2007
Court: Hammond, Randerson and Williams JJ Counsel: C Muston for Appellant
K B F Hastie for Crown

Judgment: 23 August 2007 at 10 am

JUDGMENT OF THE COURT

AThe appeal against conviction on the charge of attempted manufacturing of methamphetamine is allowed. A retrial is ordered on that charge.

BThe appeal against sentence is allowed and a sentence of two years imprisonment substituted on each of the charges of possession of equipment and precursor substances.

C Leave to apply for home detention is declined.

R V TOWGOOD CA CA480/06 23 August 2007

DOrder prohibiting publication of judgment and the reasons therefor in news media or on internet or other publicly accessible database until final disposition of re-trial. Publication in law report or law digest
permitted.

REASONS OF THE COURT

(Given by Randerson J)

Introduction

[1] After a jury trial at Whangarei at which Baragwanath J presided, the appellant was convicted of three drug offences and sentenced to four years imprisonment.

[2] The indictment originally charged the appellant with manufacturing methamphetamine at Whangarei on or about 14 October 2005. He was also charged with possession of equipment and precursor substances for the purpose of manufacturing methamphetamine. There is no challenge to his conviction on these two counts.

[3] On the manufacturing count, it was not until after the closing addresses of counsel at the end of the trial that the trial judge informed counsel he intended to direct the jury that, if they were not satisfied the Crown had proved methamphetamine had actually been manufactured, it was open for them to find the appellant guilty instead of an attempt to manufacture methamphetamine. Neither counsel at trial objected to that course.

[4] In the event, the appellant was acquitted on the charge of manufacturing but convicted of the attempt. A co-accused (Mr Tuki) was acquitted on all charges.

[5] The appellant now appeals against his conviction on the attempted manufacturing charge on the grounds that it should not have been left to the jury and that the Judge’s direction to the jury on that charge was inadequate. The appellant also appeals against his sentence on the ground it was manifestly excessive.

Background facts

[6] On 14 October 2005, the police executed a search warrant at the appellant’s address in Whangarei. The appellant and the alleged co-offender were found standing by a bench in a garage on the property. A strong smell of chemicals was noticed and other officers with experience in clandestine laboratory cases were called in.

[7] Located in the garage were a number of items of equipment and substances commonly used in the manufacture of methamphetamine. On a bench in the garage, a sports bag…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Towgood

Details

AGLC: R v Towgood [2007] NZCA 359
Case: [2007] NZCA 359
Decision Date: 23 August 2007

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal against conviction and sentence brought by Duane Brian Towgood, who was convicted of three drug offences after a jury trial. The appeal against conviction was on the charge of attempted manufacturing of methamphetamine, while the appeal against sentence was on the ground that it was manifestly excessive. The Crown did not cross-appeal against the acquittal on the manufacturing charge. The appellant was acquitted of manufacturing methamphetamine but convicted of the attempt, while a co-accused was acquitted on all charges. The appeal against conviction was based on the grounds that the attempted manufacturing charge should not have been left to the jury and that the Judge’s direction to the jury on that charge was inadequate.

The Court concluded that the direction to the jury was inadequate because it did not clearly focus on the two steps of intention to manufacture methamphetamine and the doing of an act or acts for the purpose of achieving that object. It also did not identify the act or acts said to have been taken by the appellant in pursuance of the objective of manufacturing methamphetamine, nor did it provide direction on the issue of proximity. The Court concluded that the inadequacy of the direction gave rise to a real risk of a miscarriage of justice and allowed the appeal against conviction on the charge of attempted manufacturing of methamphetamine. The Court ordered a retrial on that charge and allowed the appeal against sentence, substituting a sentence of two years imprisonment on each of the possession charges.

The Court declined leave to the appellant to apply for home detention because the offending was relatively serious and took place at the appellant’s residence. The Court ordered a retrial on the attempted manufacturing charge, and the sentence of four years imprisonment was set aside and a sentence of two years imprisonment was substituted on each of the possession charges, those terms to be served concurrently.

Orders